Delhi District Court
Sc No. 52361/2016 State vs . Vinod @ Kali & Ors. Page No. 1 Of 33 on 27 August, 2019
CNR No. DLNW01-000079-2006
FIR No. 245/2006 PS Adarsh Nagar
U/S 395/397/120B/412 IPC & 25/27 Arms Act
IN THE COURT OF SH. HARISH KUMAR : ADDITIONAL
SESSION JUDGE 03 : NORTHWEST : ROHINI : DELHI
In the matter of:
STATE
VERSUS
1. Vinod Kumar @ Kali
S/o Ved Prakash
R/o H.No. 3, Gali No. 30,
Mahendra Park, Jahangir Puri,
Delhi
2. Ramesh
S/o Jhalluram
R/o Jhuggi H1 Block,
Jahangir Puri, Shah Alam Bhandh,
Delhi
3. Rajesh Kumar Sahu
S/o Seeta Ram
R/o Jhuggi No. 512,
H4 Block, Jahangir Puri,
Delhi
4. Ram Janam @ Janmu
S/o Angad Dubey
R/o H.No. 719, Gali No. 12,
Jeewan Park, Samay Pur, Delhi
5. Vijay Shah
S/o Mahender Shah
R/o Village,
PO & PS Raja Pakar,
SC No. 52361/2016 State vs. Vinod @ Kali & ors. Page No. 1 of 33
CNR No. DLNW01-000079-2006
FIR No. 245/2006 PS Adarsh Nagar
U/S 395/397/120B/412 IPC & 25/27 Arms Act
District Vaishali, Bihar
Present Address:
Jhuggi No. G164, Jahangir Puri,
Delhi
6. Vijay Kumar
S/o Bhola Rai
R/o Jhuggi No. 30/C46
Block No. H4
Jahangirpuri, Delhi
Date of Institution of the case in Sessions Court: 27.06.2006
Date of conclusion of arguments : 24.07 & 27.08.2019
Date of Judgment : 27.08.2019
JUDGEMENT
1. Brief facts leading to the trial of the accused for offence under Section 395/397/120B/412 IPC & 25/27 Arms Act as disclosed in the Chargesheet is that on 22.04.2016 a call from unknown person was received regarding apprehension of one ruffian at Kewal Park, near NDPL Office who along with his associates had robbed money. The said information was reduced into writing vide DD No. 21A and same was marked to SI Krishan Lal. SI Krishan Lal along with Ct. Anil Kumar reached at the spot i.e. Kewal Park near Power House where complainant Baij Nath and Ramesh Sahni met them and they produced accused Rajesh and Ram Janam along with handbag of red yellow and green colour having two bundles of Rs.10,000/ each having denominations of Rs.100/ amounting to Rs.20,000/, slips bearing no.
SC No. 52361/2016 State vs. Vinod @ Kali & ors. Page No. 2 of 33 CNR No. DLNW01-000079-2006 FIR No. 245/2006 PS Adarsh Nagar U/S 395/397/120B/412 IPC & 25/27 Arms Act 1018 and 1019 and one buttondar knife. They also produced another bag of green and pink colour having two bundles of Rs.10,000/ each of denominations of Rs.100/ amounting to Rs.20,000/, slips bearing no. 1773 and 1755 and one buttondar knife. IO SI SI Krishan Lal took the same into possession.
2. IO SI Krishan Lal recorded the statement of the complainant Baijnath who deposed that he and his friend Ramesh Sahni were coming from their residence and going towards Azadpur Sabzi Mandi and when they were near the power office Kewal park four persons came from behind and one of them brandished katta (country made pistol) and other three brandished knives and robbed them at the point of katta and knife by snatching bag from his hand as well as from the hand of Ramesh and fled from there. They chased them and apprehended accused Rajesh and Ram Janam with the help of public persons and recovered bag of Ramesh having Rs.20,000/ and slips from accused Rajesh and recovered bag of Ramesh having Rs.20,000/ and slips from accused Ram Janam. Buttondar knives were also recovered from the possession of each of both the accused persons. Other associates of the accused Ramesh and Ramjanam managed to flee from the spot. Complainant further disclosed that he and his friend both work as commission agent at Azadpur Subzi Mandi and he was carrying a mud (khaki) color thaila (hand bag) containing 5,34,000/ and two parchi (slips) and his friend Ramesh Sahni was also carrying a blue color thaila containing Rs 1,54,000/ SC No. 52361/2016 State vs. Vinod @ Kali & ors. Page No. 3 of 33 CNR No. DLNW01-000079-2006 FIR No. 245/2006 PS Adarsh Nagar U/S 395/397/120B/412 IPC & 25/27 Arms Act and two hand bag containing Rs. 20,000/ each in each hand bags and two parchi in each hand bags. They were carrying this money to make payment at Azadpur Subzi Mandi.
3. IO SI Krishan Lal prepared tehrir and seized both the bags containing bundles of Rs. 20,000/ each and slips vide seizure memo. IO also measured both the buttondar knives and prepared sketch thereof and seized the same vide seizure memos and sealed all the pullindas with the seal of KL. IO prepared tehrir and got the present FIR registered Section 395/397/120B/411 IPC. IO prepared site plan at the instance of the complainant. Both the accused persons were arrested and their disclosure statements were recorded. PC remand of both the accused persons were obtained to trace other accused persons but could not be traced.
4. On 26.04.2006 accused Vijay Shah was apprehended and arrested in the present case. On 28.04.2006, accused Ramesh was apprehended along with bag containing robbed amount of Rs.1,20,000/. Accused Ramesh was arrested and IO seized the said bag with amount of Rs.1,20,000/ and sealed the same with the seal of KL.
5. On 22.05.2006 accused Vinod Kumar @ Kali was apprehended along with bag containing robbed amount of Rs.1,25,000/. Accused Vinod was arrested and IO seized the said bag SC No. 52361/2016 State vs. Vinod @ Kali & ors. Page No. 4 of 33 CNR No. DLNW01-000079-2006 FIR No. 245/2006 PS Adarsh Nagar U/S 395/397/120B/412 IPC & 25/27 Arms Act with amount of Rs.1,25,000/ and sealed the same with the seal of KL. IO recorded the disclosure statement of accused Vinod and prepared pointing out memo at his instance.
6. Vide order dated 07.06.2006 accused Babu Lal got anticipatory bail from the Sessions Court and he was directed to join the investigation but he did not join the investigation and it was stated that remaining robbed amount was still lying with him.
7. The amount recovered from the possession of accused Rajesh, Ramjanam @ Janmu and Ramesh was released on superdari. The country made pistol recovered from the possession of accused Vinod was sent to FSL.
8. On 23.05.2006 accused Ramesh refused to participate in TIP Proceedings before Ld. MM. On 05.06.2006, accused Vinod was identified during TIP Proceedings before Ld. MM.
9. After completion of investigation charge sheet under Section 395/397/120B/411 IPC and Section 25/27/54/59 Arms Act was filed against accused Ramesh, Vinod, Rajesh, Ram Janam @ Janmu and Vijay Shah.
10. Ld. Metropolitan Magistrate before whom charge sheet was filed took cognizance of the offense and after compliance with the SC No. 52361/2016 State vs. Vinod @ Kali & ors. Page No. 5 of 33 CNR No. DLNW01-000079-2006 FIR No. 245/2006 PS Adarsh Nagar U/S 395/397/120B/412 IPC & 25/27 Arms Act provision of the Section 207 CrPC committed the case to the session court after which it was assigned to this Court.
11. On 18.07.2006 accused Vijay Kumar was apprehended, interrogated and was arrested. He admitted of his involvement in the case and of having received a sum of Rs 2,80,000/ out of which he got recovered Rs 21,500/ from his jhuggi. He also got recovered two parchi of Goverdhan Das Rajiv Kumar and one parchi of Tek Chand & Co. and also pointed out place of incident. Supplementary charge sheet was filed against the accused Vijay Kumar and was sent for trial.
12. Supplementary charge sheet was also filed in respect of accused Babu Lal however he was discharged by the Ld. Predecessor of this Court vide order dt. 07.09.2009.
13. Prima facie finding case having been made out. Ld. Predecessor of this Court was pleased to frame requisite charge under Section 395/397 IPC against accused Vinod Kumar @ Kali, Ramesh, Rajesh Kumar Sahu, Ram Janam @ Janmu, Vijay Kumar and Vijay Shah; Charge under Section 120B IPC against all accused persons; Charge under Section 412 IPC against accused Vinod Kumar @ Kali, Ramesh, Rajesh Kumar Sahu, Ram Janam @ Janmu and Vijay Kumar; Charge under Section 25 and 27 Arms Act against accused Vinod Kumar @ Kali; Charge under Section 25 Arms Act against SC No. 52361/2016 State vs. Vinod @ Kali & ors. Page No. 6 of 33 CNR No. DLNW01-000079-2006 FIR No. 245/2006 PS Adarsh Nagar U/S 395/397/120B/412 IPC & 25/27 Arms Act accused Rajesh Kumar Sahu and Ram Janam. Charges were explained to all the accused persons to which they pleaded not guilty and claimed trial. Thereafter, prosecution was asked to substantiate its allegation by examining its witnesses cited in the list of witnesses.
14. In all prosecution examined 17 witnesses out of which PW1 is the eyewitness and victim; PW3 is the complainant cum eye witness and victim; PW8 is Assistant Director, Ballistic Division, FSL; PW12 and PW14 are Ld. Additional Senior Civil JudgecumJSCC; PW15 is MACT Judge. Rest all are police witnesses.
14.1. PW1 Ramesh Sahni deposed that he was a commission agent in Azad Pur Mandi. On 22.04.2006, he along with Baij Nath went to Azad Pur Mandi from Kewal Park Adarsh Nagar. He was having one thaila of blue colour, two hand bags of multi colour. Both the hand bags contained Rs. 20,000/ each along with slips in the name of Kushi Ram in one bag and other of Goverdhan Dass in other bag. Blue colour thaila contained Rs. 1,54,000/. Baij Nath was having a mud colour bag containing Rs.5,34,000/. At about 5.30 pm when they reached near power house five persons came from behind and surrounded them. One of the accused was having a country made pistol and other accused persons were having knives in their hands. Accused persons had surrounded him and they snatched all the money from them. He and his friend raised alarm. Public persons gathered at the spot. Three of the accused persons ran away from there and two SC No. 52361/2016 State vs. Vinod @ Kali & ors. Page No. 7 of 33 CNR No. DLNW01-000079-2006 FIR No. 245/2006 PS Adarsh Nagar U/S 395/397/120B/412 IPC & 25/27 Arms Act persons were apprehended and beaten by the public. Their names were revealed as Ram Janam and Rajesh. Someone made a call at number 100. Police came there. He handed over the accused to the police. On their formal search one knife was recovered from each of the accused. Bag containing currency notes of Rs. 20,000/ and two slips of Goverdhan Dass was recovered from accused Ram Janam and bag containing currency notes of Rs. 20,000/ was recovered from accused Rajesh. He proved seizure memos Ex. PW1/A and Ex. PW1/B, sketch of knives Ex. PW1/C and Ex. PW1/D recovered from accused Rajesh and Ram Janam, arrest memos of accused Rajesh and Ram Janam Ex. PW1/E and Ex. PW1/F, personal search memo of accused Rajesh and Ram Janam Ex. PW1/G and Ex. PW1/H. 14.1.1. He further deposed that disclosure statements of accused Rajesh and Ram Janam were recorded. After recording the disclosure statement, he along with police officials came to PS. Accused Rajesh disclosed that he along with accused Vijay Shah conspired with Vinod, Ramesh and Vijay.
14.1.2. He further deposed that later on he reached Tihar Jail. He identified accused Vinod in TIP proceedings Ex. PW1/I. Accused Ramesh and Vijay refused to participate in judicial TIP. He identified accused Ramesh in Rohini Courts and his statement regarding identification was recorded by the IO. He identified accused Vijay Shah as he used to work with Baijnath Shah as partner and SC No. 52361/2016 State vs. Vinod @ Kali & ors. Page No. 8 of 33 CNR No. DLNW01-000079-2006 FIR No. 245/2006 PS Adarsh Nagar U/S 395/397/120B/412 IPC & 25/27 Arms Act thereafter, they started doing separate business. His statement was recorded by the IO. He identified knives Ex.P1 and Ex. P2, country made pistol Ex. P3, thaila Ex. P4 and photocopies of currency notes of Rs.1,25,000/ and Rs.1,20,000/ Ex. P5 and Ex. P6 respectively.
14.2. PW2 HC Vijay Kumar was MHC(M) and he proved entry at serial no. 3437 dated 22.04.2006 Ex. PW2/A, entry at serial no. 3447 dated 24.04.2006 Ex. PW2/B, entry at serial no. 3495 dated 22.05.2006 Ex. PW2/C, entry at serial no. 3625 dated 19.07.2006 Ex. PW2/D in register no. 19 regarding depositing of case property in malkhana by SI Krishan Lal. He also proved RC No. 74/21 Ex PW2/E. He also deposed that he handed over Rs.40,000/ to Ramesh Sahni, Rs.1,20,000/ to Sh. Baij Nath as per order dated 29.05.2006 passed by Ld. MM and Rs.1,25,000/ to Baij Nath and Ramesh Sahni as per order dated 19.07.2006 passed by Ld. MM.
14.3. PW3 in examinationinchief recorded on 15.12.2019 deposed that on 22.04.2006 he along with Ramesh were going to Subzi Mandi Azadpur from house bearing No. H. No. A16 Kewal Park, Adarsh Nagar, Delhi. He was carrying a bag of khaki colour which was containing a sum of Rs. 5.34 lacs and Ramesh was carrying a bag of blue colour which contained a sum of Rs.1.54 and two hand bags containing a sum of Rs.20,000/ each in the said bags along with some chits.
SC No. 52361/2016 State vs. Vinod @ Kali & ors. Page No. 9 of 33 CNR No. DLNW01-000079-2006 FIR No. 245/2006 PS Adarsh Nagar U/S 395/397/120B/412 IPC & 25/27 Arms Act 14.3.1. At about 5:30 am when they reached service road near Power House, Kewal Park Extn., four persons came from behind and one of them was having country made pistol and two of them were having knives and they had robbed his bags containing a sum of Rs.5.34 lacs and a bag of Ramesh containing Rs.1.54 and two small bags containing Rs.20,000/ each on the point of country made pistol and knives.
14.3.2. PW3 in his examinationinchief recorded on deposed that when they reached at service road near Power House, Kewal Park Extn at about 5:30 pm five persons came and one of them was having country made pistol (katta) and other were having knives and the person who was having country made pistol (katta) had put it upon him and the other person who was having knives put the same upon him and Ramesh and they robbed his bag containing Rs.5.34 lacs and bag Ramesh containing Rs.1.54 lacs and two small bags containing Rs. 20,000/ in each from Ramesh. The bag which he was having was also containing some slips and the small two bags which Ramesh was having was also containing slips. He came to know about the fifth accused later on.
14.3.3. After snatching the bags, all assailants started running, they raised alarm and chased them and succeeded in apprehending two accused persons with the help of public persons. From the possession of accused Rajesh one small bag containing cash amount of SC No. 52361/2016 State vs. Vinod @ Kali & ors. Page No. 10 of 33 CNR No. DLNW01-000079-2006 FIR No. 245/2006 PS Adarsh Nagar U/S 395/397/120B/412 IPC & 25/27 Arms Act Rs.20,000/, slips and one knife were recovered and from the possession of accused Ram Janam one small bag containing cash amount of Rs.20,000/ slips and one knife were recovered. Someone made a call at number 100. Police reached at the spot and they handed over both accused along with recovered bags to the police. He proved sketch of both the knives Ex. PW1/C and Ex. PW1/D, seizure of both knives Ex. PW3/A and Ex. PW3/B and seizure memo of both bags containing cash amount of Rs.20,000/ each and slips Ex. PW1/A and Ex. PW1/B. His statement Ex. PW3/C was recorded by the police.
14.3.4. He proved arrest memo Ex. PW1/E and Ex. PW1/F and personal search memo Ex. PW1/G and Ex. PW1/H of accused Rajesh and Ram Janam. He further deposed that both the accused were also interrogated and they made disclosure statements and they disclosed the name of their coaccused Vijay Shah also.
14.3.5. Accused Vijay Shah who was working with them prior to the incident was also arrested by the police and he was identified by him on 26.06.2006 and he told the police that accused Vijay was working with him prior to the incident and thereafter he started his own business. He has also identified accused Vinod @ Kali in judicial TIP at Tihar Jail and proved the TIP proceedings Ex. PW3/D. He further deposed that all the five accused persons who robbed them are present in the court today and accused Vijay Shah is also present in the court today, who was working with him in the same business.
SC No. 52361/2016 State vs. Vinod @ Kali & ors. Page No. 11 of 33 CNR No. DLNW01-000079-2006 FIR No. 245/2006 PS Adarsh Nagar U/S 395/397/120B/412 IPC & 25/27 Arms Act Later on he had got released the cash amount of Rs.1,20,000/ vide superdarinama Ex.PW3/E. 14.3.6. During leading question put by Ld. APP for the State, he deposed that he had also shown the place of occurrence to the police and police prepared site plan at his instance. He identified knife Ex. P1, knife Ex. P2, two small bags Ex.P7 and P8, two bunches of photocopies of currency notes in the domination of Rs. 100/ each (Rs.1.25 lacs and Rs.1.20 lacs) Ex. P5 and P6, two bunches of photocopies of currency notes in the denomination of Rs. 100/ each (Rs.20,000/ each) Ex.P9. {Witness further stated that the bag (thaila) in which he was carrying the cash amount was not in the case property produced in the court today}. He also identified country made pistol Ex. P3.
14.4. PW4 HC Balkrishan proved carbon copy of present FIR under Section 392/411/34 IPC and 25/27 Arms Act Ex. PW4/A and his endorsement on rukka Ex. PW4/B. 14.5. PW5 Ct. Anil Kumar had gone to the spot along with IO after the receipt of DD No. 21A and took rukka to Police Station and got the FIR registered.
14.6. PW6 HC Vinod Kumar had joined the investigation of the present case with IO on 22.05.2006 and deposed regarding SC No. 52361/2016 State vs. Vinod @ Kali & ors. Page No. 12 of 33 CNR No. DLNW01-000079-2006 FIR No. 245/2006 PS Adarsh Nagar U/S 395/397/120B/412 IPC & 25/27 Arms Act apprehension of accused Vinod @ Kali along with country made pistol and robbed money. He proved sketch of country made pistol Ex. PW6/A, seizure memo of country made pistol Ex. PW6/B, seizure memo of currency notes Ex. PW6/C, arrest memo of accused Vinod @ Kali Ex. PW6/D, personal search memo Ex. PW6/E, disclosure statement Ex. PW6/F and pointing out memo Ex. PW6/G. He identified country made pistol Ex. P3 and polythene bag of yellow colour Ex. P4.
14.7. PW7 Ct. Lalit Kumar had joined investigation of the present case with IO on 26.04.2006 and deposed regarding apprehension of accused Vijay Shah on pointing out of accused Ram Janam and Rajesh Kumar Sahu. He proved arrest memo Ex. PW7/A, personal search memo Ex. PW7/B and disclosure statement Ex. PW7/C of accused Vijay Shah.
14.8. PW8 Sh. K.C. Varshney, Assistant Director, Ballistic Division, FSL, Rohini proved his detailed report dated 16.01.2007 Ex. PW8/A. 14.9. PW9 HC Surender Kumar had joined the investigation of the present case with IO on 22.05.2006. On secret information, accused Vinod along with bag having currency of Rs.1,25,000/ and country made pistol was apprehended. He proved seizure memo of bag containing amount of Rs.1,25,000/ Ex. PW6/C, sketch of country made SC No. 52361/2016 State vs. Vinod @ Kali & ors. Page No. 13 of 33 CNR No. DLNW01-000079-2006 FIR No. 245/2006 PS Adarsh Nagar U/S 395/397/120B/412 IPC & 25/27 Arms Act pistol Ex. PW6/A, seizure memo of country made pistol Ex. PW6/B, arrest memo of accused Vinod Ex. PW6/D, personal search memo of accused Vinod Ex. PW6/E, pointing out memo Ex. PW6/G, disclosure statement of accused Vinod Ex. PW6/F, disclosure statement of accused Vijay Ex. PW9/A, seizure memo of bag containing Rs.21,500/ and three slips Ex. PW9/B. He identified photocopies of currency notes Ex. P5 (colly.), country made pistol Ex. P3, blue colour thaila Ex. P10, currency notes Ex. P11 (colly.), slips, old piece of cloth and blue colour polythene bag Ex. P12 (colly.). He also proved pointing out memo Ex. PW9/C. 14.10. PW10 Ct. Shyam Bahadur deposited the exhibits of the present case at FSL vide RC No. 74/21/26 and after depositing the same, he handed over the receipt in this regard to MHC(M).
14.11. PW11 Ct. Anil Kumar had joined the investigation of the present case with IO and Ct. Narinder on 28.04.2006. He deposed regarding apprehension of accused Ramesh at the instance of accused Rajesh along with raxin bag having robbed amount of Rs.1,20,000/. He proved seizure memo of bag containing robbed amount of Rs.1,20,000/ Ex. PW11/A, arrest memo Ex. PW11/B, personal search memo Ex. PW11/C and disclosure statement Ex. PW11/D of accused Ramesh. He identified photocopies of currency notes of Rs.1,20,000/ Ex. P6.
SC No. 52361/2016 State vs. Vinod @ Kali & ors. Page No. 14 of 33 CNR No. DLNW01-000079-2006 FIR No. 245/2006 PS Adarsh Nagar U/S 395/397/120B/412 IPC & 25/27 Arms Act 14.12. PW12 Sh. Jagdish Kumar, Ld. Addl. Senior Civil Judge cum JSCC (the then Ld. MM) proved statement of accused Ramesh Ex. PW12/A, TIP Proceedings Ex. PW12/B, certificate Ex. PW12/C, endorsement Ex. PW12/D and application Ex. PW12/E. 14.13. PW13 HC Ram Pal who deposed on the similar lines as deposed by PW7 Ct. Lalit Kumar. On pointing out by Ld. Addl. PP for the State, he identified the accused persons Rajesh, Ram Janam and Vijay Shah.
14.14. PW14 Sh. Sunil Chaudhary, Ld. Additional Senior Civil Judge (the then Ld. MM) proved TIP proceedings of accused Vijay Ex. PW14/A. 14.15. PW15 Ms. Nirja Bhatia, MACT Judge proved TIP Proceedings of accused Vinod vide Ex. PW1/I and application Ex. PW15/A. 14.16. PW16 Ct. Hansraj had joined the investigation of the present case with IO and Ct. Sushil Kumar on 18.07.2006 and deposed regarding apprehension of the accused Vijay on the secret information. He proved arrest memo Ex. PW16/A and personal search memo Ex. PW16/B of accused Vijay.
14.17. PW17 SI Krishan Lal is the investigating officer who SC No. 52361/2016 State vs. Vinod @ Kali & ors. Page No. 15 of 33 CNR No. DLNW01-000079-2006 FIR No. 245/2006 PS Adarsh Nagar U/S 395/397/120B/412 IPC & 25/27 Arms Act proved his investigation and report etc.
15. After completion of prosecution evidence, statement of all the accused persons Vinod @ Kali, Ramesh, Vijay Shah, Vijay Kumar, Ram Janam, Rajesh Kumar Shah were recorded under Section 313 Cr.PC where all incriminating substance appearing in evidence was put to them and were asked as to whether they want to lead evidence in defense to which accused Vinod @ Kali, Vijay Kumar, Ram Janam and Rajesh Shah said "Yes" and accused Ramesh and Vijay Shah said "No".
16. Accused examined Sh. Tribhuvan Singh as DW1 who deposed that Ramesh and Baijnath are known to him since 1988 as they both and he used to work at Azadpur Mandi. Accused Ram Janam was having some monetary transaction with Ramesh and on that issue, they both had an altercation and Ramesh called accused Ram Janam at his residence at Kewal Park to receive money from him. Thereafter, Ram Janam was involved in the present case.
17. Ld. APP for state has argued that prosecution has proved its case beyond doubt. Ld Defense Counsel has argued that prosecution has failed to prove its case. Their respective submission shall be discussed at relevant place in the judgement.
SC No. 52361/2016 State vs. Vinod @ Kali & ors. Page No. 16 of 33 CNR No. DLNW01-000079-2006 FIR No. 245/2006 PS Adarsh Nagar U/S 395/397/120B/412 IPC & 25/27 Arms Act Undisputed proceedings
18. Defense has not disputed registration of the FIR in question. Defense has also not disputed deposit of case properties entires in Maalkhaana Register No. 19 vide various entries Ex PW2/A to Ex PW2/E. Defense has also not questioned ballistic division report Ex PW8/A in respect of country made pistol allegedly recovered from the possession of the accused Vinod Kumar @ Kali.
Analysis
19. Criminal justice delivery system was set in motion by someone with the call at 100 number following which it is stated that DD No. 21A was recorded in the PS Adarsh Nagar and SI Krishan Lal was deputed for appropriate action as per law.
20. Prosecution has not clarified as to whether pursuant to call at 100 number PCR reached at the spot or not. Prosecution has not examined any PCR officials which means that no PCR officials reached at the spot. Prosecution has also placed on record the DD No.21A dt 22.04.2006 but same was not sought to be proved. Perusal of DD No. 21A shows that caller had informed that "one ruffian who alongwith his associates had robbed money has been apprehended and police be sent immediately".
21. FIR Ex PW4/B was registered on the complaint of PW4 Baijnath. In his complaint he mentioned about four robbers. Police in SC No. 52361/2016 State vs. Vinod @ Kali & ors. Page No. 17 of 33 CNR No. DLNW01-000079-2006 FIR No. 245/2006 PS Adarsh Nagar U/S 395/397/120B/412 IPC & 25/27 Arms Act all filed charge sheet against seven accused persons out of which accused Babu Lal was discharged by the Court and six are facing trial.
22. It is the case of the prosecution that accused Rajesh and Ramjanm were caught at the spot and in their disclosure statement they revealed that they along with accused Vijay Shah, Vijay Kumar, Babu Lal, Ramesh and Vinod @ Kali had conspired to loot heavy amount and accused Vijay Shah who was earlier working with Baijnath and Ramesh Sahini in the Azadpur Subzi Mandi as commission agent informed them that Baijnath and Ramesh Sahini used to make heavy payment on Saturday and they planned to rob them. Accused Vijay Shah had shown accused Rajesh the residence of Baijanath and Ramesh Sahini and the route they take. On 22.04.2006 as per planning accused Rajesh, Ramjanam, Vijay Kumar, Vinod and Ramesh reached at Kewal Park and did the act of robbing.
23. Now the first question is how many person actually came in front of the Baijnath and Ramesh Sahini. Ld. Defense Counsels have argued that complainant stated about four assailants person in his complaint and so did he depose on the first day of his examination on 15.12.2009, however, when he appeared on the next day he stated about five persons coming from behind. They have submitted that only on the discrepancy in the testimony of the Baijnath alone, case of prosecution can be discarded and all accused be acquitted.
SC No. 52361/2016 State vs. Vinod @ Kali & ors. Page No. 18 of 33 CNR No. DLNW01-000079-2006 FIR No. 245/2006 PS Adarsh Nagar U/S 395/397/120B/412 IPC & 25/27 Arms Act
24. Ld. APP for the state has submitted that there were five persons who have committed robbery by coming from behind. He submitted that witness PW1 Ramesh Sahini categorically deposed that five persons robbed them and he categorically identified them in the court. Hence, he submitted that there is no confusion as to the fact that five person were present at the spot and one of them had shown country made pistol and other four has shown knives. He further argued that complainant on account of nervousness/trepidation could not correctly told about five assailants but later on he corrected himself. He has further argued that it is settled law that FIR is not encyclopedia of incident. Hence, he argued that nothing damaging to the case of the prosecution could be inferred therefrom.
25. Perusal of the FIR and statement Ex PW3/C of the complainant shows that complainant had stated that four assailants had come from behind. In the first day of examinationinchief he deposed that four assailants came from behind and one of them was having country made pistol and two of them were having knives and they robbed him and his friend of their bags containing cash. At this stage his further chief examination was deferred at the request of the Ld. APP for the state submitting that witness was not feeling well. Next time in his examinationinchief he deposed that five persons came and one of them was having country made pistol and other were having knives. He in his entire examinationinchief did not depose that he corrected himself with respect to number of assailants that SC No. 52361/2016 State vs. Vinod @ Kali & ors. Page No. 19 of 33 CNR No. DLNW01-000079-2006 FIR No. 245/2006 PS Adarsh Nagar U/S 395/397/120B/412 IPC & 25/27 Arms Act actually came in front of them. He did not depose that at any point of time he requested the IO to correct the number of assailants nor did PW17 IO SI Krishan Lal in his testimony depose that he got corrected and recorded the statement of the complainant about the number of assailants. Statement of complainant under Section 161 CrPC is on record where he is reported to have stated that out of nervousness/trepidation he could mention only about four assailants but in fact five assailants had come from behind. PW17 IO SI Krishan Lal was silent in his testimony as to when he came to know that five assailants had come to complainant and his friend.
26. It cannot be believed that SI Krishan Lal recorded the statement of the complainant without having made any inquiry from the companion Ramesh Sahini. Further, IO should have stated in his charge sheet as well his in his examinationinchief that complainant initially had stated about four assailants but later on had stated that there were five assailants and he (complainant) could not mention about the fifth one as a result of his nervousness and subsequently came to him (IO) and then got another statement recorded. Neither the complainant nor the IO in their testimony has explained this.
27. The theory that complainant was nervous or was under
fear is not acceptable for the reason that complainant himself and his companion alongwith the help of public person had allegedly apprehended two accused persons on spot and they kept on holding SC No. 52361/2016 State vs. Vinod @ Kali & ors. Page No. 20 of 33 CNR No. DLNW01-000079-2006 FIR No. 245/2006 PS Adarsh Nagar U/S 395/397/120B/412 IPC & 25/27 Arms Act the accused persons till police arrived. There is no evidence that till the arrival of the police two accused persons were scrambling to escape and complainant and his companion were busy in preventing them from doing so. Thus the scene projected is cool and calm. There was no hustling bustling activity to say that accused Rajesh and Ramjanam were trying to escape and complainant and his friends were busy in preventing them from running. Once accused persons have been apprehended by complainant and his companion and both accused persons had been made to wait till the arrival of police, complainant was then in commanding position and there was no fear or nervous situation to have stated only about four assailants instead of five assailants.
28. The four and five assailants theory also get crumbled when PW1 Ramesh Sahini in his cross examination deposed that six persons surrounded them at the time of incident. He further deposed that his statement was not read over to him by the police and he signed the same without going through its contents. He further deposed that accused Vinod pointed country made pistol in his stomach and another person put the knife on the stomach of Baijanath. On the contrary PW3 Baijanath in his examination in chief deposed that the person who was having country made pistol put it upon him and other person having knives put the same upon him and Ramesh. In his cross examination PW3 Baijnath deposed that four accused person were present at the time of the incident and all those SC No. 52361/2016 State vs. Vinod @ Kali & ors. Page No. 21 of 33 CNR No. DLNW01-000079-2006 FIR No. 245/2006 PS Adarsh Nagar U/S 395/397/120B/412 IPC & 25/27 Arms Act persons were not having muffled face. He further stated that he saw the faces of all the four accused persons at the time of the incident. Thus, theory which started with four assailants went up to six and came down to four. Consequently, identification of the accused persons in the court, particularly of those accused persons who had appeared before the complainant and his companion, has come under clouds of doubt. There was something much more at work than what prosecution seems to bring on record. In any case very foundation of the case has shaken.
29. It has already been noted above that as per complainant the person who had country made pistol in his hand, put the pistol on him (complainant) but as per Ramesh Sahini the pistol was put on his stomach by the person who had country made pistol. As per both of them only one assailant had pistol in his hand, other had knife in their respective hand. This discrepancy cannot be attributed to any loss of memory because incident of robbery as is being described by the prosecution get itched in the mind of the victim. Such discrepancy cannot be attributed to any fear or to non availability of time to observe the incident of robbery. This discrepancy can not be ignored terming it trivial in nature. Consequently, identification of accused Vinod as the person holding the country made pistol also gets clouded in doubts.
30. Whether the incident happened at all? This question SC No. 52361/2016 State vs. Vinod @ Kali & ors. Page No. 22 of 33 CNR No. DLNW01-000079-2006 FIR No. 245/2006 PS Adarsh Nagar U/S 395/397/120B/412 IPC & 25/27 Arms Act assumes importance because prosecution did not lead any evidence to prove that complainant and his companion had with them the stated amount of cash i.e. cash sum of Rs 5,34,000/ with complainant and Rs. 1,54,000/ + Rs. 20,000/ + Rs. 20,000/ with Ramesh Sahini. No record or any other evidence has been led by the prosecution to prove that complainant and his friend were at relevant time having with them the amount they claimed to have been with them. Prosecution has not led any verification evidence by examining the expected recipient of the said payment to the effect that complainant and his companion were going to make the payment. Prosecution not got collected any evidence to the effect whether complainant and his companion were having any license to work as commission agent at Azadpur Subzi Mandi. Prosecution and investigating agency proceeded assuming that what complainant had stated was true. It has got to be understood that a person cannot be robbed of an article/cash which is not in his physical possession. Investigation and evidence both is lacking on this aspect.
31. In the present case it is the case of the prosecution that four (five, six) accused persons had robbed the complainant and his companion of their cash as noted above. It is further the case of the prosecution that accused Rajesh and Ramjanam were apprehended at the spot with the help of the public person. It is further the case of the prosecution that when police arrived they were handed over to the SI IO Krishan Lal alongwith the alleged recovered articles i.e. two hand SC No. 52361/2016 State vs. Vinod @ Kali & ors. Page No. 23 of 33 CNR No. DLNW01-000079-2006 FIR No. 245/2006 PS Adarsh Nagar U/S 395/397/120B/412 IPC & 25/27 Arms Act bags with cash of Rs 20,000/ each and parchi and knives. No public was made witness and consequently examined. PW5 Ct. Anil who had accompanied the PW17 IO SI Krishan Lal, at the spot, in his cross examination deposed that bags and knives were not recovered from the accused in his presence. He volunteered that the same were produced by the complainant telling that the particular knife and particular bag were recovered from particular accused. He admitted that place of occurrence was thickly populated area and at that time many public persons had gathered at the spot. IO also deposed that hands bags and knives were produced by the complainant and his friend.
32. Complainant and his companion were threatened and they themselves with the help of public persons apprehended two of them but the public person who had assisted in apprehending the two of the accused did not come forward to be witness. The two apprehended accused were later on become so forlorn and weakened that they remained resistless till the time police arrived. It is told that public person beaten them but no MLC of these two accused was got down by the IO as deposed by the IO. Police also did not bother to take name and address of the said public person who had assisted in apprehending the accused persons nor were they served with any notice by the police. Police did not take name and address of those public persons in whose presence two apprehended accused persons were searched and one bags containing Rs. 20,000/ and knife was SC No. 52361/2016 State vs. Vinod @ Kali & ors. Page No. 24 of 33 CNR No. DLNW01-000079-2006 FIR No. 245/2006 PS Adarsh Nagar U/S 395/397/120B/412 IPC & 25/27 Arms Act recovered from each of the two apprehended accused person. Interestingly charge sheet itself states that an unknown person had informed PCR that one ruffian who with his associates had robbed cash, had been apprehended near NDPL office Kewal Park. This one ruffian at the spot became two, but the caller was neither identified nor examined. At least examination of the caller could have explained how one ruffian became two at the spot. IO also did not explain this in his report or in his testimony.
33. Ld. Defense Counsels have argued that present one is a fake case. They have drawn attention of this Court to the tehrir and to the Ex PW1/C (sketch of knife allegedly recovered from accused Rajesh), ExPW1/D sketch of knife allegedly recovered from accused Ramjanam), seizure memo Ex PW3/B of knife from accused Ramjanam and seizure memo Ex PW3/A of knife from accused Rajesh and have contended that these documents are fabricated document.
34. This Court read the tehrir Ex PW17/A wherein it is mentioned that when IO with Ct. Anil reached at the spot and met complainant and his friend Ramesh, they produced two accused along with two hand bags and two knives and stated the facts as noted above. Then he i.e. IO recorded the statement of the complainant, taken into possession the articles produced i.e. two hand bags containing currency amounting to Rs. 20,000/ each and two knives vide respective seizures, drawn the sketches of knives and send the SC No. 52361/2016 State vs. Vinod @ Kali & ors. Page No. 25 of 33 CNR No. DLNW01-000079-2006 FIR No. 245/2006 PS Adarsh Nagar U/S 395/397/120B/412 IPC & 25/27 Arms Act statement and tehrir i.e. rukka for registration of FIR but seizure memo Ex PW3/A and Ex PW3/B and sketches Ex PW1/C and Ex PW1/D shows that FIR number has been mentioned whereas by that time FIR was not registered so FIR number could not have been mentioned on these documents. Both PW5 Ct. Anil and PW17 IO SI Krishan Lal deposed that no addition or deletion was made in the documents. When it was so then it means FIR number was mentioned in these documents even before registration of FIR or alternatively the documents were prepared later on in police station. Thus, again clouds of doubts have come over the case of the prosecution.
35. The next step in the case was arrest of third accused arrested Vijay Shah. As per prosecution he was arrested on 26.04.2006. It is the case of the prosecution that police remand of accused Rajesh and Ramjanam was taken and on 26.04.2006 both accused took the police party i.e. IO, Ct Lalit and Ct. Ramphal to Jahangirpuri and pointed out towards one person who was standing in a street of G Block Jahangirpuri and thereafter he was apprehended whose name was revealed as Vijay Shah. Witness to the arrest of Vijay Shah i.e. PW6 Ct. Lalit deposed that they had gone on TSR. He further deposed that three police officials i.e. he, Ct. Ramphal and IO were sitting on the back seat of the TSR whereas accused Rajesh and Ramjanam were sitting on the floor of the TSR. Another witness to the said arrest i.e. PW13 Ct. Ramphal deposed that they had gone in police Gypsy. As per PW7 Lalit departure entry was made in Daily SC No. 52361/2016 State vs. Vinod @ Kali & ors. Page No. 26 of 33 CNR No. DLNW01-000079-2006 FIR No. 245/2006 PS Adarsh Nagar U/S 395/397/120B/412 IPC & 25/27 Arms Act Diary, however, prosecution has not filed any copy of Daily Diary. Further, arrest was made in the jurisdiction of the PS Jahangirpuri but said police station was neither informed nor taken into confidence.
36. Thus, manner of arrest of accused Vijay Shah also appears doubtful because Ct. Lalit described unusual way of going in TSR and if there had been any truth in that event another Ct. Ramphal would have deposed the same unusual way of going to Jahangirpuri but he deposed that they had gone in police Gypsy. Out of the two one has lied or both of have lied. Further, it has come in evidence that accused Vijay was known to both complainant and his friend Ramesh Sahni false implication cannot be ruled out. Apart from disclosure statement no material has been collected against him. Hence, arrest of the accused in the manner as projected comes under cloud.
37. Now comes the arrest of accused Ramesh S/o Jhalu Ram on 28.04.2006 on identification of accused Rajesh and Ramjanam. He is alleged to have been arrested with Rs. 1,20,000/ i.e. 10 bundle of Rs. 100/. He was arrested from Mool Chand Colony, Adarsh Nagar. Witness to the arrest Ct. Anil PW11 deposed that in 28.04.2006, accused persons Ramesh and Ramjanam were taken out of lockup and thereafter police party comprising of IO, Ct. Narinder and himself went in search of other coaccused. When they reached at GTK Road near Mool Chnad Colony one boy who was standing at the edge of the road, was pointed out by accused Rajesh as coaccused Ramesh.
SC No. 52361/2016 State vs. Vinod @ Kali & ors. Page No. 27 of 33 CNR No. DLNW01-000079-2006 FIR No. 245/2006 PS Adarsh Nagar U/S 395/397/120B/412 IPC & 25/27 Arms Act Thereafter, said boy was arrested who revealed his name as Ramesh. At that time accused Ramesh was carrying a raxin bag on his shoulder. Word "Nike" was printed on the bag. On checking the said bag by SI Krishan Lal 12 packets of currency notes on the denomination of Rs 100/ each totaling Rs 1,20,000/ were found. The said packets was wrapped in pink color handkerchief. The bag was also found containing one jeans pant on which "Seldel" was written, one underwear on which "Ptex" was written and one tooth brush.
38. In cross examination PW11 deposed that they had left PS at 9.30 p.m and he was not aware whether any DD entry was made before leaving the PS. 5/6 public persons were asked by IO to join investigation outside PS. IO had asked the name and address of said public persons however none told him. No action was taken by IO against the public person who refused to join investigation. They reached the place where accused Ramesh was apprehended. At the place of apprehension of accused also 4/5 public person were asked to join investigation, however, none agreed. About 810 public persons had collected at the spot at the time of apprehension of accused Ramesh. He did not know if IO took any action against the public persons. His statement was recorded on 28.04.2006 at P.S.
39. Arrest Memo Ex PW11/B of accused Ramesh shows that he was arrested at 11.30 PM. PW11 deposed that they left PS. At 9:30 PM. Perusal of testimony of PW11 shows that no time was wasted in SC No. 52361/2016 State vs. Vinod @ Kali & ors. Page No. 28 of 33 CNR No. DLNW01-000079-2006 FIR No. 245/2006 PS Adarsh Nagar U/S 395/397/120B/412 IPC & 25/27 Arms Act looking for the accused as he was found on the edge of GTK Road and accused was overpowered on reaching there. It is not the testimony of PW11 that after leaving PS they went to many places in search of the accused. Further, it is in the testimony of PW11 that many public persons were there but none agreed to join the proceedings. Although word overpower has been used by the witness PW11 in arresting the accused but perusal of his testimony no where suggest any struggle from both side in executing arrest. No resistance on the part of the accused. No attempt to escape was made by the accused. There is no testimony that accused was caught by way of waylaying. Further even after his arrest no effort was made by IO to get him recovered the knife which he had allegedly used/shown at the time of robbery. No police remand was taken of this accused for effecting the recovery of knife. Further PW11 deposed that disclosure statement of the accused Ramesh was recored on 28.04.2006 but the disclosure statement Ex PW11/C shows that it was written on 29.04.2006. IO did not explain why he did not make any effort to enquire about the knife from accused Ramesh nor did he make any effort to effect any recovery. These all defects noted above and no effort on the part of the IO even to make enquiry about the knife allegedly used by this witness during the allegedly robbery, lead this court even to believe the fair arrest and recovery of currency from the accused Ramesh.
40. Next is the arrest of the accused Vinod @ Kali on 22.05.2006 on the basis of secret information. He was alleged to have SC No. 52361/2016 State vs. Vinod @ Kali & ors. Page No. 29 of 33 CNR No. DLNW01-000079-2006 FIR No. 245/2006 PS Adarsh Nagar U/S 395/397/120B/412 IPC & 25/27 Arms Act been arrested with Rs. 1,25,000/ and one country made pistol. PW6 Vinod and PW9 HC Surender apart from IO are the witness to the arrest. Even in this arrest no public persons were made witness. Manner of arrest of this accused is also encircled with suspicious ring around.
41. PW6 HC Vinod deposed that accused Vinod was arrested at 8:30 PM. He, however, in his cross examination deposed that by 9:00 PM they were back to the PS. PW9 HC Surender deposed that at about 8:30 PM accused Vinod came there by bus and he was identified by the secret informer and thereafter accused Vinod was apprehended. Thereafter, currency notes were counted, sketch of the pistol was made and then accused led the police party to the place of occurrence and pointed out the place of incident. Thus, if testimony of PW9 is taken into account then it was not possible for them to return back to PS by 9:00 PM. In any case perusal of arrest memo Ex PW6/D shows that accused was arrested at 9:30 PM.
42. Further, PW6 HC Vinod simply deposed that accused Vinod was arrested at 8:30 PM. He is silent about the manner accused was arrested. Where from accused Vinod was coming or going or whether he was on foot or on any vehicle, he was silent on these aspect. PW9 HC Surender deposed that at about 8:30 pm accused Vinod came there at G. T. Karnal Road by a bus and he was apprehended on identification by secret informer. PW17 IO Krishan SC No. 52361/2016 State vs. Vinod @ Kali & ors. Page No. 30 of 33 CNR No. DLNW01-000079-2006 FIR No. 245/2006 PS Adarsh Nagar U/S 395/397/120B/412 IPC & 25/27 Arms Act Lal deposed that accused came from the side of G.T. Karnal Road and was going towards Mahendra Park and at the instance of the informer he was overpowered. Thus, testimony of IO suggests that accused was coming from the side of G. T. Karnal Road on foot and was going towards Mahendra Park on foot which is in variance of what PW9 deposed.
43. Further, PW9 HC Surender deposed that he had counted the recovered notes and as per him 12 bundles of Rs 100/ notes and one bundle of Rs 50/ note was recovered from the accused Vinod but as per seizure memo recovered notes/currency were 12 packets/bundles of Rs 100/ notes and one bundle of 50 notes of Rs 100/.
44. Further, as per PW6 HC Vinod accused Vinod after arrest was brought to PS and from PS accused took the police party to the place of incident for pointing out but as per PW9 HC Surender after arrest accused Vinod took them to place of incident from the place of arrest itself. Testimony of IO also suggest as saying that they went to place of incident from the place of arrest.
45. Thus, in view of the contradiction between the testimonies of PW6, PW9 and PW17 as noted above, manner of arrest and recovery of offending articles from the accused Vinod gets covered with cloud of doubts and it cannot be said that prosecution has proved SC No. 52361/2016 State vs. Vinod @ Kali & ors. Page No. 31 of 33 CNR No. DLNW01-000079-2006 FIR No. 245/2006 PS Adarsh Nagar U/S 395/397/120B/412 IPC & 25/27 Arms Act the recovery of articles from the accused beyond reasonable doubt.
46. Arrest of accused Vijay though proved by the prosecution but recovery of Rs 21,500 from his jhuggi has not been proved. For the reason best known to the prosecution witness Ct. Shushil who allegedly witnessed the recovery, has not been examined by the prosecution. It is the case of the prosecution that accused Vijay was arrested at the bus stop just outside the Rohini Court at the instance of secret informer, by the raiding party comprising of IO, Ct Hansraj and Ct Sushil. It is further the case of the prosecution that next day accused Vijay took IO Krishan Lal accompanied with Ct. Sushil to his jhuggi and got recovered Rs 21,500/ which was the share money of looted amount. No reason was given for not examining Ct Sushil in whose presence allegedly accused Vijay got recovered the offending amount. Testimony of IO Krishan Lal alone cannot be relied upon to prove the recovery of offending money in the absence of corroboration. Hence, prosecution failed to prove beyond reasonable doubt the recovery of offending loot money from the accused Vijay Kumar.
47. In view of the reasons discussed above, prosecution failed to bring home charges beyond reasonable doubt, against any of the accused persons for offenses they were tried for in the present case. Hence, all the accused persons are acquitted of offences they were charged against.
SC No. 52361/2016 State vs. Vinod @ Kali & ors. Page No. 32 of 33 CNR No. DLNW01-000079-2006 FIR No. 245/2006 PS Adarsh Nagar U/S 395/397/120B/412 IPC & 25/27 Arms Act
48. Their respective bail bond and surety bond stands discharged. Original documents, if any of the surety be returned to them as per rules.
49. Each acquitted accused to furnish bond of Rs 10,000/ with one surety each of like amount in terms of Section 437A of CrPC.
Digitally signed HARISH by HARISH
KUMAR
KUMAR Date: 2019.08.27
15:15:32 +0530
Announced in the open court (HARISH KUMAR)
(Judgement contains 33 pages) ADDL. SESSIONS JUDGE - 03,
NORTH WEST, ROHINI COURTS,
NEW DELHI / 27.08.2019
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